OCC Publishes Guidelines for Consumer Debt Sales

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A further piece of news from the bank regulation/debt collection beat I sometimes cover:

On Monday, August 4, the federal Office of the Comptroller of the Currency (OCC) issued a risk management bulletin to its supervised banks (i.e. national banks) giving them guidance on how they should handle sales of seriously delinquent, “charged off” debt to third-party debt buyers.

The OCC’s guidelines mandate a minimum quantity of account documentation the bank must supply the debt buyer upon purchase, and they also forbid the sale of certain categories of accounts, such as accounts belonging to deceased persons and accounts which are included in a pending or concluded bankruptcy (yes, unbelievably there is a market for these debts). They also require banks to do some due diligence on a debt buyer before selling debt to it.

This guidance formalizes advice the OCC issued back in July 2013. It also broadens the scope of concerns addressed last year in a consent order between Chase Bank and the OCC regarding its sales of consumer debt. I am glad to see it, but it goes to show how long it can take regulators to catch up to the facts on the ground. The large abuses these guidelines are meant to combat reached their height in 2009 or 2010 in my opinion.


At Least I Had Fun

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I read an interview with David Graeber this morning that captures one of the reasons I never felt like I fit in in the academy. I always thought that the point of being an academic was to have fun. Books are fun, words are fun, ideas are fun; the fun of those things were about all that got me through high school and college. Along the way, in the midst of all the fun, we might all learn something, of course. I always thought, though, that we should at least be having fun, and showing our students how to have fun, too.

But no, friends, it doesn’t work like that. Graeber captures it nicely:

The reason to go into academia is because it’s pleasurable, it’s fun, it’s basically a form of play—you get to play with ideas.  But somehow academics manage to convince themselves that—what with the insecurities of the job market—in order to get that security, that comfort, you have to give up the pleasure.  You have to become this boring, pedantic academic politician, saying the right things, thinking the right things, publishing in the right places.  It all becomes this careerist, professionalized cage, and you hate yourself for it, and thus what you really hate is anybody who seems to be having fun.

Over the course of my academic life, a steady drip of seriousness wore down any sense of fun there might have been in the whole enterprise. I was a “Continental” philosopher, one of the ones most committed to the notion of fun, at least in theory. (Don’t get me started on analytic philosophy, which is basically just English common law without state-sanctioned judges.) Even there, though, fun was difficult for me to maintain.

I think it started to go downhill with my second dissertation committee chair. (I ended up having three.) The second one ultimately left his wife, his children, and the entire country in disgust; his last e-mail message to me from France was a rambling (possibly drunken) missive stating various non-specific deficiencies in my work. Before he left, though, he commented on a chapter I had written, a not particularly rigorous, but fun, examination of the problems of materialism from Descartes through Marx and Lenin (in a dissertation about Edmund Husserl). He said, “This is… interesting, but not very professional. You need to cut this out.”

He was right, of course. It was not very professional. It was not world-historically insightful. I was still disappointed, though, because before all else it was fun. It was exciting. It made me excited to research it and write about it. My director’s message, though, was clear: Your fun is not professional.

Of course, we academics get sent this message over and over again. Fun, we are told, is something that has to wait until after you get tenure. (Except, of course, that hardly anyone gets tenure anymore, and the process makes it so that most who get it need years of therapy to learn how to have fun again.) Fun doesn’t get you published in the “right” journals, doesn’t get you promoted. Fun doesn’t solve all of the depressing problems of the humanities and higher education. Fun is for your private life, assuming you retain the capacity to maintain one that goes beyond drinking and canoodling with students. (I never had the slightest inclination or desire to canoodle with students, by the way.) Fun is no way to become a respected functionary in the university and disciplinary bureaucracy.

Yet I kept insisting on making the work fun. I am not sure I know how to do anything else.

I had to struggle to get a dissertation completed and defended–long, complicated story there, and I won’t tell it today. The finished product was an awkward, goofy failure. I look back on it and I giggle a bit that a research university approved it, actually. My committee was complimentary, but their primary substantive remark was that what I was doing was “exciting” and “original.” I now think that they were in effect saying “Here is someone who insists on making this academic research thing fun.” It was possibly the kindest thing they could say. My dissertation stank. It was, though, the clear work of someone who was having fun.

I have a lot of complicated regrets and griefs left over from my old academic career. One thing I can say, though, with some pride is that, as bad an academic as I ended up being, I managed, at the core of it, to enjoy myself.

At least I had fun.


Capital One Adopting “Strongarm” Contract Terms

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(Before reading this post, please review my Legal Disclaimer.)

Today an article in the L.A. Times about a change to Capital One’s credit card terms and conditions has been making the rounds of social media. Per the article, Capital One has inserted language giving itself permission to visit cardholders at their homes or places of employment with regard to their accounts and to modify or suppress the way in which its calls display on cardholders’ caller ID systems. The article left unsaid (but clearly implied) that most likely Capital One would do one or the other of these things in the context of attempting to collect on delinquent accounts.

While a spokesperson for Capital One sought to reassure cardholders and the general public that they had no intention of sending representatives out to find them and no intention of spoofing caller ID systems, the language itself sounds alarming. The contract language raises a good question: Just what can a bank like Capital One do to collect a debt?

The L.A. Times article dispatches one issue very quickly: the provision allowing Capital One to visit you at your home or place of employment almost certainly does not violate the 4th Amendment to the U.S. Constitution. That amendment has to do with unreasonable search and seizure at the hands of law enforcement. Capital One is not law enforcement, so this language doesn’t raise a 4th Amendment claim. Just as A&E can fire Phil Robertson from Duck Dynasty for what he says without it raising a 1st Amendment claim, Capital One can ring your doorbell to collect a debt without raising a 4th Amendment claim.

Depending, however, on the way Capital One went about visiting you personally, or the frequency with which they did so, their actions could potentially violate other state or federal laws regarding invasion of privacy, harassment, or debt collection. If Capital One did decide to use more confrontational (and potentially deceptive) collection tactics, though, they could at a minimum face greater regulatory scrutiny. In recent years, bank regulators (including the Office of the Comptroller of the Currency, or OCC, the regulator with oversight over Capital One and other national banks) have taken a greater interest in what they call “reputational problems” with banks—a general phrase for anything that erodes consumer and public trust in the fairness and stability of the banking system. Back in September 2013 I wrote about (http://briancubbage.com/2013/09/20/chases-collection-debt-sales-reined-in-by-regulators/) a consent order entered into by the OCC and Chase Bank that made waves in the world of consumer credit and debt collection. Citing, among others, reputational problems arising from Chase’s practices of suing consumers over delinquent credit card debt and sales of delinquent debt to third-party debt buyers, the OCC got Chase to agree to do greater due diligence to ensure that their accounts would end up in collection litigation or in the hands of others who would use dubious collection tactics. Sending out hired goons to a cardholder’s house, if it made the papers (which is likely enough), would be just the sort of reputational problem that would get regulators’ attention—and Capital One certainly knows it.

Of course, the simplest way around all of the negative press would have been to avoid putting clauses like these into their credit card contracts to begin with. I am mystified by why Capital One would include such contractual provisions if it had no intention of invoking them. Generally, all of the fine print in the terms and conditions of a credit card account is there for some reason, including those lengthy arbitration agreements. Credit card companies certainly use those, most notably as a tool to defeat class action litigation, even though binding arbitration has a history of scandals and is currently under scrutiny by the Consumer Financial Protection Bureau (CFPB). Capital One must think there is some benefit to them from having these new clauses in their credit card terms. I am just hard pressed to know what the benefit could be.

All of this raises the question: Would visiting cardholders in person and taking measures to defeat caller ID systems be illegal under consumer protection and debt collection laws? The answer is probably, it depends on where you live. There is a federal law—the Fair Debt Collection Practices Act, or FDCPA, 15 U.S.C. §1692 et seq.—that limits debt collection activity. All of the potential collection activity under discussion here would, if done by, for instance, a collection agency, probably violate the FDCPA. However, the FDCPA does not cover the collection activity of original creditors who are attempting to collect their own debts; they are specifically exempted under 15 U.S.C. §1692a(6)(A). The only exception to this rule is if an original creditor is collecting debts using another name than their usual name “which would indicate that a third person is collecting or attempting to collect” a debt (§1692a(6)). So, if Capital One did directly employ collection agents who went to your house to collect, their (mis)conduct would not be actionable under the FDCPA.

For the same reasons, it wouldn’t be an FDCPA violation for Capital One to modify or suppress the caller ID information of its in-house collection staff. There is a separate law, the Truth in Caller ID Act of 2009 (TCIA), that prohibits “any person” (including corporations) from “caus[ing] any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value.” The question, though, is whether a bank who transmits misleading caller ID information while attempting to collect a cardholder’s debt is “intending to defraud, cause harm, or wrongfully obtain anything of value.” If they could show that they had a legitimate interest in reaching the consumer to collect a debt and that their caller ID spoofing did not cause harm, they could probably avoid claims under that act. For instance, the U.S. Court of Appeals for the Fifth Circuit found in 2012 (in Teltech Systems, Incorporated et al. v. Phil Bryant et al., 702 F.3d 232) that Mississippi’s Caller ID Anti-Spoofing Act was preempted by the federal TCIA because the Mississippi law did not allow for what the opinion called “non-harmful spoofing.” While the non-harmful spoofing envisioned by Congress when enacting the TCIA was in the first instance that potentially undertaken by law enforcement or intelligence agencies of the federal government, private businesses have certainly taken note of the decision.

The answer to whether Capital One could legally use the collection tactics envisioned by its contracts would depend on state collection law. While many states (including Kentucky) have no separate debt-collection law to speak of beyond the FDCPA, many do. Some mirror the FDCPA, while others go significantly beyond it. Interestingly, the L.A. Times, a major California newspaper, fails to mention the fact that California’s Rosenthal Act codifies some of the strongest consumer protections against debt collection abuses in the country– and its strictures extend to anyone who is collecting a debt, even original creditors like banks. California Attorney General Kamala Harris made headlines last May, for instance, by bringing a major case against JPMorgan Chase for alleged Rosenthal Act violations relating to Chase’s collection litigation against California consumers.

While it is not settled whether Capital One’s contract terms would open up the bank to violations of state collection laws, it appears that they plan on moving forward with their plan to keep those terms in place. Stay tuned…


Sermon: “The Meaning of Yes” (Matthew 5:21-37)

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The following is a sermon delivered on Sunday, February 16, 2014 at Douglass Boulevard Christian Church (Disciples of Christ) in Louisville, KY. Thanks to Derek Penwell, our senior minister, for extending the invitation to me to preach, and to everyone in attendance for your attention and your kind remarks.

I think it is safe to say that most of you here today come to this church because God is stirring your heart towards a view of following Jesus that centers on grace, love, and acceptance rather than condemnation and judgment. Certainly that is why I am here. I keep on coming back because of the Jesus who says that loving God with all your heart, and your neighbor as yourself, are the whole of the Law and the Prophets. So today’s Gospel lesson, from the Sermon on the Mount, may sound jarring to us. It does to me. This is not sweetness-and-light Jesus. This is law-and-order Jesus. This is “tough on crime” Jesus. Here we have the Jesus who warns us against the fires of hell, the Jesus who tells us to cut out our eyes and cut off our hands and throw them away if they cause us to sin, the one who rails against divorce and adultery. This passage evokes for me the Southern Baptist revival preachers of my childhood, who gloried in warning us against the panoply of things that would land us in the lake of fire for eternity, and– I will be honest– it makes me squirm in my seat, just like I always did at revival time. This is the Jesus I pretend not to know at the party when he starts to get on his high horse.

I struggle with this Jesus. I suspect many of you do too. I find, though, that when Jesus, or anyone else, makes me struggle like this, I have something to learn from them that I need to acknowledge. It may not be apparent at first what that something is; it may not be what either of us thinks it is. But the lesson is there, and in the struggle over it we both find ourselves on the way to someplace we need to go, if we will just trust in it and not break away from it.

Now, in Protestant Christianity there are many who would like to interrupt my sermon at this point to make hay about the notion of “taking scripture literally.” Perhaps it is a coincidence, or perhaps it isn’t, that many of those who make the most of “taking scripture literally” deploy the notion in the service of bolstering what they deem to be the “tough on crime” messages: that God prepares a place of everlasting torment for some of us, and that sending some of his beloved creatures there is to the greater glory; that we are all sinners but “those people” (wink wink, you know who they are) are worse sinners than others; that we just can’t let women preach; that we have to keep those awful queer folk out of church. “The Bible” says so, after all. So they say, anyway.

It would seem like this passage from Jesus’s Sermon on the Mount would be theological red meat for this view of Jesus and scripture. On its face the message we hear today is tough– very tough. We hear in no uncertain terms that all sorts of things are forbidden to us, and that doing them merits us a one-way ticket to the lake of fire– although, in fairness, what the New Revised Standard Version of the Bible which I read earlier translates as “hell” is really “Gehenna,” a valley on the edge of the Old City of Jerusalem, not some ethereal afterlife domicile of the damned.

Still, it would be very tempting to leave the matter there, with all the adulterers and divorcees writhing on Jerusalem’s everlasting tire fire, except that the totality of what Jesus is recommending, taken with sheer literality, is so outlandish that pretty much no one, not even the most devoted “Biblical literalist,” has ever really done what he is suggesting. I do not know of any “Bible-believing” church in which people gouge out their own eyes or cut off their own hands in the service of Biblical fidelity. (Perhaps such a church has existed in the long history of the faith, but I cannot imagine that it held many adherents for very long.) Even devotees of “taking the Bible literally” have to concede that Jesus is after something deeper than what lies on the literal surface of his words. Our only other option would be to turn the church into a butcher shop, and that seems…, well, counterintuitive, to put it mildly.

So. What is Jesus after? I think that Jesus is pointing us here towards an idea about “the Law” that Paul, the first theologian of the church, developed at greater length in his letters. The idea, briefly put, is this: The Law, in virtue of its function of setting boundaries around what is permitted and what is not, brings about the very conditions of its own transgression. Here’s what I mean: Before a law exists making some conduct unlawful, there is no such thing as breaking the law with respect to it. There is quite simply no law there to break. When the law exists, though, only then is there such a thing as breaking it. To paraphrase the philosopher Hegel: Creating a lawful boundary involves at the same time creating a space on the other side of it, and even (or especially) when we recognize that boundary as a boundary and self-consciously dwell within it, we simultaneously occupy that space on the other side virtually in thought. While we tell ourselves that we are staying within the boundaries set for us, we are really declaring mastery over those boundaries by assigning those boundaries to ourselves, and hence stepping over them.

All that is highfalutin language for a thing we all experienced as kids. Surely this happened to you: Mom or Dad or some other authority figure says, “Stay out of that room!” or “Don’t open that drawer!” and then what happens? Yep– suddenly that room or that drawer becomes the most interesting thing in the universe. The mind fills up with visions of what must be behind that parental prohibition that is so important: something obviously great, or terrible, or both. Then, there is but one option: We have to know what is in there, or else let our wild imagination fill the blank. We have to test the boundary. We have to see how firm the boundary is, to know whether there is some way to purchase minimal compliance with it while still getting what we now so desperately want.

(For the parent in this situation, there is risk, too– a risk I have learned all too well now that I have a child. Perhaps there are good, principled reasons for putting the boundary in place. Not all boundaries are bad. Once the boundary is in place, though, maintaining it in the face of resistance threatens to make maintaining the boundary more about maintaining our parental authority rather than about the principled reasons for instituting the boundary in the first place. It sometimes becomes less a matter of “What is in there is bad for you” and more a matter of “Don’t go in there because I said so!”)

This phenomenon is not, of course, just a peculiarity of Christian theology or of naive childhood. If you have ever had any contact with what the corporate world calls “compliance departments,” you know exactly what I mean. If corporations are people (corporations are people, my friend, or so I heard), then their attitude towards law and regulation is every bit as calculating and scheming as that of the toddler who desperately longs to gorge himself in the cookie jar. “What is the bare minimum we have to do to comply with the Clean Air Act? The Affordable Care Act? with bank regulations?” Coming up with creative ways to secure technical compliance with, but substantive transgression of, laws and regulations is, to some people, not only a way to gain a competitive advantage, but their solemn duty as good Americans.

Laws and boundaries have a purpose. They coordinate our relationships with one another. Sometimes boundaries are vital to life: boundaries that keep abusers apart from those they seek to abuse, for example. The danger of boundaries that take on the force of law, however, is that they turn our relationships with one another into relationships with the law. They can turn our focus from “How should I treat you, my fellow human being?” to “How can I comply with the law?”

What is Jesus trying to say to this law-and-boundary-obsessed state of mind? I think he is trying to remind us that, in the case of God, the purpose of the Law for us is not to invite us into a struggle in which we seek to master the law. It is not to give us a convenient checklist of things to do so that we can feel like we are just good enough as we are and go on to Sunday lunch with a clear conscience. It is instead an invitation to come face to face with who I am, with who we are, and to allow God to transform us together. The vision of the Law Jesus provides us in the Sermon on the Mount is, if anything, so impossibly strict as to be beyond the reach of anybody’s ability to comply. The roots of the non-compliance lie inscrutably deep in the human heart, at the very wellsprings of our willpower. I mean, really: Who hasn’t at some point looked at another with desire, however fleetingly? Who hasn’t come before God harboring some resentment against another? Before the Law as Jesus understands it, there is absolutely no hope that you will ever come before it and justify yourself. Who could come clean before its judgment seat with both eyes, both hands, intact? What good is it to be perfect if at the end all you are is a perfect pile of severed limbs?

What are you supposed to do, then? Just this: stop trying. You heard me: Stop trying. Stop trying to be perfect. Stop pretending like you have the willpower to justify yourself and your existence, to outdo everyone else who ever lived, including God. After all, what did Jesus say in last week’s lesson? How soon we forget. You are salt and light. You, right there, just as you are: Not as you might be if you would just stop playing poker in the fellowship hall, or say fewer swear words, or lose weight, or pay off your credit cards, or earn more money. No. As you are, full stop. This doesn’t mean that we are supposed to forget about God and the Law, or that we shouldn’t try to do better. It is, rather, to allow our struggle with those things, our awareness that we have fallen short of them, to remind us who we are, and to help us grow with God’s help into more than we could ever imagine. That is why the Law exists, and that is why Jesus came to fulfill it. Jesus, and the Law, are trying to point you towards something much more important than unwavering compliance with some standard of perfection. The Sermon on the Mount is Jesus pointing, arm outstretched, towards something greater than the impossible standard of perfect compliance. He points towards that something greater, and yet so often all we manage to do is stare uncomprehending at the tip of his finger, like the family dog.

At what does Jesus point, then? It seems to me that he is pointing us away from ourselves and whatever struggles we are having with God and the Law and towards a right relationship with one another. Before the things we do to earn individual favor with God have any value, we are called to right relationship with our brothers and sisters. If you are before the altar and someone has something against you, nothing you do before God at that altar is going to fix that. Your tithes and offerings, however lavish, will not buy you loving relationships with others. Your brick walls cannot hide the injustice of your relationships with those around you. Your gilded crosses and your steeples will not keep out your inhumanity– my inhumanity, the callousness of our indifference, the depth of our exploitation of other people and of the natural world.

Greater and more wondrous a creation than any law, even the whole of the law itself, is the human being sitting in the pew next to you right now. Greater than any law is the person freezing in the street. Greater than any law is the queer or trans* youth thrown out of their house without a place to stay, the migrant shunted from country to country and scapegoated for all of society’s ills. Who among you can honestly say that you have been reconciled to all of those, not just to a few tokens who you keep around so you can feel “tolerant” and “broad-minded”? I sure can’t. Reconcile yourself to all of those, Jesus seems to be saying, and maybe then we can talk to the celestial compliance department about how much is just enough of a gift to leave on the altar for you to feel good about yourself.

We are fearfully and wonderfully made, and God has given us power– more power, indeed, than we usually acknowledge, perhaps more than we really want. We lack the power to outfox God and make ourselves perfect. Our power is different. Part of that power is the power to say “yes” and “no” to others. Our identity, our bonds, the world in which we live is brought about by those things and those people to which we say “yes” and “no.” Our “yes” and “no” require no other oath, Jesus tells us; to think so is to listen to the “evil one.” They stand without support from the sky above or the earth below or the throne of the sovereign. Whether we take the step to be reconciled with our brothers and sisters starts with our ability to say “yes” to that reconciliation, as terrifying and as threatening as it may appear. It doesn’t end there, but it has to start there. And we have to own what those yeses and no’s mean: They mean nothing less than our creating, or not creating, the world God intends for us, one in which we are going to live in a world with our fellow beings, all our fellow beings, or attempt to slip away behind walls of privileged avoidance in which we pick and choose who we shall recognize.

The author Lydia Millet has a short essay about the movie Star Wars called “Becoming Darth Vader.” Many people have spilled a lot of ink about Star Wars, but Millet’s essay is perhaps the most trenchant thing about it I have ever read, because she shows what the figure of Darth Vader really has to teach us. She writes:

It seems to me sometimes that I am surrounded by Vaders. The Vaders are the ones who do not wear their hearts on their sleeves, who protect themselves from exposure. They do not display themselves in all their weakness to disarm would-be detractors, adopt a deceptively submissive pose to fool fearsome opponents. They do not broadcast their flaws, do not reach out to others by seeking and embracing a communion of weakness, of understandable frailty. (Many is the friend I have made this way, when we saw, in the turn of an instant, talking, that we knew each other best not through our successes but through our failures and our wry awareness of them.) Vaders do not make inappropriate remarks at dinner parties, let down their guard in drunken moments to reveal the wanting soul within. The Vaders are too smart for that, and they know which side their bread is buttered on.

The Vaders know about masks. They use them well.

And of course, the strongest of the Vaders rule the world.

Today we have the power to decide who it is we shall be. Are we going to be Vaders, hiding behind masks of impassivity, saying “no” to others, speaking only of our imagined successes through our metallic throatboxes, ruling the world in the service of Empire, but then– dying like Vader: as Millet writes, “ravaged and half eaten-up by machine,” “bound up in the tragedy of our own silence”? Or are we going to say yes? Yes to God, yes to the other people with whom we share this city, this country, this planet?

The opportunity to start saying that “yes” is literally as close to you as the people in this room.


Advent, Day 16: “Strong”

2013-12-17 15.02.53I am a day late with my photo for Day Sixteen of Advent, but no matter. Better late than never.

This photo is of a co-worker’s office chair. He had a procedure done last week. He is recovering quite well. He is a driven and productive person, though, so naturally he wants his recovery to be complete yesterday. He came to work today, but after a few hours he was in considerable pain and so had to go home. He was disappointed. This is not how he wanted the day to turn out for him. He is in a position he finds uncomfortable: weakened and needing help.

I know myself well enough to know that I would feel the same way. I feel worthless when I am not producing something. I hate asking for help. Sometimes, though, toughing it through does no one any good. Sometimes the strong thing is simply to go home, to regroup, to be deliberate about what needs to be done and what doesn’t, to balance care for others and care for one’s work against care for oneself. Sometimes the strong thing is to ask for help when you need it, and to be willing to accept help. Sometimes the strong thing is not being productive.

I am a cisgender man in the United States. The way I experience what that means is that I have been socialized to be self-sufficient above all and to view vulnerability as a weakness and a liability. It has taken me until my middle age to learn that vulnerability is a source of strength. It points towards the values that motivate me, the people and the things I care about, the compassion that connects me in solidarity with others. Vulnerability is terrifying and it hurts sometimes– a lot, actually– but, when coupled with a strong sense of appropriate boundaries, it allows me to flourish.

This Advent, I await the vulnerable Christ– the one who, in the words of what may be one of the oldest Christian hymns in the New Testament,

though he was in the form of God,

did not regard equality with God

as something to be exploited,

but emptied himself,

taking the form of a slave,

being born in human likeness.

And being found in human form,

he humbled himself

and became obedient to the point of death–

even death on a cross. (Philippians 2:6-8, NRSV)

The Jesus I encounter is not the muscle-bound MMA fighter of a certain megachurch pastor’s fantasies. He is one who says to me, as he said to Paul, “power is made perfect in weakness” (2 Corinthians 12:9). He is the one who triumphs over death, but still retains his scars.

Advent, Day 13: “Justice”

2013-12-13 11.15.30-1The above photo is my submission for day thirteen of rethinkchurch.org‘s Advent Photo-a-Day project.

I work in legal services, so I see a lot of places like the courthouse in my picture for today. Many courthouses are like this one: massive, tall, made of marble and brick, with Neoclassical design features on the outside. They are meant to convey something about the nature of justice in our society: Established, impassive, authoritative, large, impersonal. They give the impression that justice– the justice of the state and its institutions– brings to bear the very weight and stability of the earth itself.

Like many people, I have found the notion of institutional justice– justice tied to authoritative institutions, to procedures and policies– very seductive. It is tempting to think of these things as being the whole of justice, or else that part of it that we can talk about profitably. I have been too close, though, to the heavy machinery of juridical institutions to believe that they have much to teach about what justice really is. The courthouses and judicial fora have their place, no denying that, but justice is not bound up in them. What’s more, their own custodians and functionaries are well aware, in their more honest moments, that these institutions do an imperfect job at bringing about even the small piece of justice that is their special remit.

Justice, if such a thing is to be found in this world, can only be found in the lives of liberated beings. Justice, if it exists, exists not in process and procedures, in insignia and architecture, but solely in flesh and blood, skin and bone. Justice is not the sort of thing that, like a marble courthouse, could keep standing until the end of time even if humans ceased to exist. Justice resides in life, in the flourishing of individuals, and in their shared striving for liberation.

We who are Christians do well to remind ourselves of these things, especially this Advent season. We do not await one who came in judge’s robes, brandishing the sigils of authority. We do not await one who came with thousands of followers, with large church buildings, with publishing and broadcasting empires, with relevance and cultural capital. We instead await one who came as a baby, illegitimate and fragile, defenseless and unable to speak. We await one who, almost from the time he is born, has to flee those who would have him put to death, and who ultimately met his death at the officious hands of Empire’s functionaries.

We say that God is such as that. We also say– or should say, if we are faithful– that God’s justice is for such as that.

Advent, Day 4: “Time”

2013-12-04 11.31.30-2

The above photo is my submission for day four of rethinkchurch.org‘s Advent Photo-a-Day project. See yesterday’s photo/post for more information.

Today’s word, “time,” makes me think about doing time. The basic statistics regarding prison and corrections in the United States are staggering, let alone the human realities. The United States incarcerates more of its citizens than any other country in the world. Advance numbers for 2012 from the U.S. Department of Justice’s Bureau of Justice Statistics indicate that, while the overall prison population in the U.S. is declining slightly, an estimated 1.57 million adults were incarcerated here by last year’s end, or about 1 in 160 adults. That number does not include all other adults who are otherwise under the supervision of state and federal correctional systems (via various forms of probation and parole). By the end of 2011 that number stood at 6.98 million, or roughly 1 in 34 adults in the United States.

By way of illustration, if my (relatively meager) cohort of 438 Facebook friends was representative of the United States, three would be in prison and ten more would be under other correctional supervision.

These mushrooming numbers are especially staggering due to the fact that, in the same time period in which prison and correctional populations have exploded, violent crime (murder, assault, rape, and sexual assault) has plummeted. Many attribute this increase to the “war on drugs,” especially at the federal level. In 2011, the last year for which official statistics are available on this question, the single largest category of federal sentences– 94,600 out of 197,050— were for drug-related offenses.

These aggregate numbers, though, don’t tell the whole story. They don’t include juveniles under correctional supervision, including those in residential facilities. Nor do they include young people caught up in the “school-to-prison pipeline,” a term for the trend in recent years in which increasingly harsh school discipline exposes students rapidly to the juvenile and criminal justice systems. Increasingly, the road that leads to prison for Americans begins in their classrooms.

The aggregate numbers also hide wide racial disparities, both in correctional populations and in the “school-to-prison pipeline.” Sticking only to people in prison, the BJS estimates that at the end of 2011, of 1.53 million prisoners, 581,300 were black, 349,900 were Latino/a, and the rest white (and the number for “white” includes Asian-Americans, American Indians, and individuals who identified more than one race). According to the 2010 census, around 13.6% of all Americans identified as Black or African American, and 16.3% of Americans identified as Hispanic or Latino. People of color are represented in prison populations out of all proportion to their overall numbers in the population. The cause of these disparities is hotly debated, although it is hard to resist the conclusion that the increase in sentences for drug-related offenses, which are famously racialized, has much to do with them.

The effects of mass incarceration on communities of color are tremendous, even more tremendous than official statistics indicate. Since many of those statistics, such as employment rates, are tied to household surveys, they disregard people in prisons and jails. This means that many official statistics for people of color, who are incarcerated at rates significantly higher than whites, are skewed due to the fact that larger segments of their populations are officially disregarded. Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindnessargues compellingly that mass incarceration in the present-day United States, via a drastic expansion of police powers and criminal law in the “war on drugs” and mandatory sentencing guidelines, systematically targets and relegates large numbers of people of color to near-permanent second-class status.

These statistics and realities ought to motivate greater outcry, or at least greater discussion. They aren’t a simple matter of “crime and punishment.” In our society, incarceration and correctional supervision are a mark that is difficult to clean off, even well after jail time is done. Many states place high barriers to persons convicted of felonies to regain their voting rights. Two states, including my own home state of Kentucky, provide no means whatsoever for felons to regain their voting rights. Employers routinely ask applicants to “check the box” indicating whether they have been convicted of a felony, and many employers will automatically weed out those applicants who check “yes.” Felony convictions also bar individuals from seeking any number of professional or occupational licenses, which restricts their long-term career prospects.

Our culture treats people convicted of crimes who have done jail time as pariahs. This, sadly, tends to include church culture. Our churches talk a good game around justice and inclusion, at least sometimes, but in practice we function as little more than arbiters of solid middle-class respectability, equipping our own communities for upward mobility. Yet we Christians gather every Sunday to follow in the footsteps of an executed criminal, blissfully ignorant of the disconnect. The Christian communities whose experience is reflected in the New Testament, however, were no strangers to incarceration. The New Testament abounds in references to prison and prisoners which are impossible to explain away as figurative references to “spiritual” bondage. Yes, much of that incarceration was at the hands of imperial Rome and its collaborators. What makes our imperial incarceration practices so much better, though? Why should followers of Jesus simply assume that this time, Empire has got it right?

This Advent, I plan to take to heart the exhortation of the Epistle to the Hebrews:

Remember those who are in prison, as though you were in prison with them; those who are being tortured, as though you yourselves were being tortured. (Heb. 13:3, NRSV)